AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 122
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and circumstances of the case, it is submitted that the Hon. Commissioner of Income Tax Appeals, Mumbai erred in treating the additions made to Plant & Machinery as additions made to Building and Furniture. The Appellant submits that additions be treated as additions made to Plant & Machinery. 2. Depreciation on Additions made to Plant & Machinery allowed as per the rate of depreciation on Buildings and Furniture: On the facts and circumstances of the case, it is submitted that the Hon. Commissioner of Income Tax Appeals, Mumbai erred in allowing depreciation under Income Tax Act, 1961 at the rates prescribed for Building and Furniture instead of Plant and Machinery based on above ground. The Appellant submits that depreciatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bed for "plant and machinery". The sum total of these expenditure alongwith date and party name is found in Annexure-A, which is part of the impugned assessment order and for completeness of facts the same is reproduced below: Date Party Name Amount 13-5-08 Mumtaz Engineering Works 17550 04.06.08 Raj Enterprises (New) 27198 12.06.08 Raj Enterprises (New) 27005 13.06.08 Aeolus Technovations P Ltd. 1983837 16.06.08 Aeolus Technovations P Ltd. 231293 23.06.08 Aeolus Technovations P Ltd. 467017 02.07.08 Aeolus Technovations P Ltd. 416315 03.07.08 Aeolus Technovations P Ltd. 13854.2 24.07.08 Raj Enterprises (New) 37166 09.08.08 Jawadwalas Construction....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing. 2.2 In para-4, AO has discussed the same. He has observed that these cost including making Aluminium wall partition, fall ceiling, flooring, sliding, which is primarily relating to building or furniture and fittings. Therefore, the AO treated the same as incurred on building, furniture and fittings. The AO also referred to the definition of "plant" described in section 43(3) of the Act, according to which building and furniture and fittings does not include "plant" as the same have been excluded by Finance Act 2003 w.e.f. 01/04/2004. The disallowance has been upheld by Ld. CIT(A) on the ground that case law relied upon by the assessee belong to a period prior to amendment brought in section 43(3) of the Act, therefore, would not be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d ITAT in the case of Madhu Industries Ltd. vs. ITO, order dated 23/7/2010 in ITA No.4172/Ahd/2007. Copy of this order was placed on our record and also given to Ld. DR, wherein electrical installations consisting of electrical wires, plugs, cables, MC Box and electrical items which does not function independently were considered to be part of "plant and machinery" and accordingly depreciation was held allowable as on plant & machinery in place of lower depreciation applicable to electrical installation. It was submitted by Ld. AR that the same logic should be applied to the present case. 3.2 Ld. AR further placed reliance on the decision of ITAT Mumbai in the case of ACIT vs. JBF Industries Ltd., ITA No.4035/Mum/2006 dated 17/12/2014, c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Court in the case of CIT vs. Shivalik Hatcheries Pvt. Ltd., 188 Taxaman 291(HP), wherein considering the various existing decisions their Lordships have held that if the building has been designed specifically to further cause of manufacture or production, then the same is "plant". In the said case poultry sheds, specifically designed to protect the birds from diseases by ensuring proper light and circulation of air, proper scientific feeding arrangement, proper arrangement for collection of manure and droppings, proper arrangement of medication and vaccination and to increase their productivity was considered to be "plant" within the meaning of unamended section 43(3). Thus, earlier to the amendment brought into statute by Finance Act 2003....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... brought into the statute by the legislature has not been shown to be violative of constitutional provision. Therefore, according to clear legislative intent the assessee cannot take the benefit of higher depreciation by including building in the value of "plant". In the case of CIT vs. Shivalik Hatcheries Ltd. (supra) the relief was granted to the assessee only on the ground that the case pertains to the assessment year which is prior to the applicability of the amendment. The case law relied upon by Ld. AR do not support the case of the assesee as the same is not directly on the issue involved in the present appeal. Similarly, the other case relied upon by the assessee before AO and Ld. CIT(A) do not support the case of the assessee on th....